Legal Studies - Crime: Key legal concepts and features of the legal system.

• Appeals – Appeals are a right given to the accused if it is believed that an error has occurred.
• Personnel – The various players in the criminal justice system all have roles and duties.

• Police – Law-enforcement officials. Their role is the duty and power to investigate and to detect those who commit crime, and to generally maintain order.
• Prosecutors – Has the role of presenting the evidence that will lead to a conviction.
• Defence Lawyers – Their role is to ‘give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients’.
• Magistrates – Is the presiding officer of local courts. They have the responsibility of finding both law and fact, and must hand down an appropriate sentence to those found guilty.
• Judges – They are in control of the court proceedings, and will be constantly called on to rule on the admissibility/allowable of evidence and objections to questions. Involves the use of wide discretion. It is their duty to sum up for the benefit of the jury. In identifying the relevant law and facts that have been presented, the judge will attempt to assist the jury to reach its verdict by relating the facts to the law.

• The role of legal aid – Is the assistance given to those who come into contact with the legal system and who would be unable to assert their legal rights without this assistance. Their role is to help prevent unfair trials due to lack of resources of the defendant.

• Types of International Crime – International crime can be viewed in several ways – a crime is committed in other jurisdictions

• An Australian, or an Australian resident, commits a crime outside Australia
• A crime against international law.

Crimes committed outside the Jurisdiction – When an Australian citizen commits a crime in another country, the laws of that country apply to the person, who will be tried and must serve the punishment.

Transnationals Crimes – There are many crimes that occur in more than one country. Bilateral treaties can be used to allow two countries to gather relevant information to allow them to catch the offender/s.

Crimes against the international community – Such crimes include: widespread extermination of civilians, enslavement, torture, rape, forced pregnancy, persecution on political, racial, ethnic or religious grounds, and enforced disappearances are all covered by the World Criminal Court. It has jurisdiction to try genocide, war crimes and crimes against humanity.

• Sources of law for international crimes: In order to maintain world order and basic human rights; treaties have been entered into by most countries to establish basic laws that underpin international law and order.

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Legal Issues and Remedies

• Creating social order through:

• Education – Campaigns are conducted to create public-awareness of what police are targeting.
• Regulation – There are many areas of law where rules set out what a person may or may not do. Breaking such laws does not automatically give you the label of a ‘criminal’.
• Coercion – There are crimes that, because of their seriousness, have to be coercively enforced if the law is to succeed in social control.

• Crime Prevention:

• Situation - The situational approach aims to make crime more difficult to carry out by increasing the visibility of police and increasing the risks and decreasing the rewards of crime.
• Social – Social crime prevention can be applied to almost any program which attempts to change social conditions, patterns of behaviour, values or self-discipline in order to reduce the likelihood of offending.

• Enforcing law through punishment:

• Purpose of punishment – The over-arching aim of punishment must be to protect society.
• Retribution – It is an ancient belief – form of vengeance
• Rehabilitation – The punishment aims to assist in providing a remedy.
• Deterrence – A traditional aim of punishment is to deter others from committing crime by ensuring they know the punishment that they will suffer if they commit crime.
• Incapacitation – A sentence that aims to ensure that an offender cannot re-offend by keeping the offender detained.
• Re-integrative shaming – When a criminal does wrong, society will express its resentment towards the criminal behaviour. This may be either a mild rebuke or a degradation ceremony.

• The sentencing process

The Hearing:         

• Evidence – Judges must only consider the evidence that is placed before them in open court in reaching their decision on the appropriate sentence.
• The role of the prosecutor – It is the duty of the prosecutor to ensure that the court has all the relevant information.
• The role of the defence counsel – It is their role to put a case for the most appropriate sentence to be made.
• The victim – It is at the time of sentencing that the victim has a voice in the criminal justice system. They are able to make their statement.

Factor affecting the decision:

• Purposes of punishment – The principle purpose is to protect society, however, there are various subsidiary aims: retribution in a public denunciation, deterrence, and rehabilitation.
• Circumstances of the offence – The judge will need to know the circumstances of the case, sometimes known as the objective factors of the offence (details of the crime relevant to the sentence, including the crime’s impact on the victim). They will include: the seriousness of the case, evidence of aggravating factors (will make it more serious), whether or not weapons were used, degree of planning or premeditation,
• Circumstances of the offender – The judge will want to know as much as possible about the offender. These are known as the subjective features (details of the offender relevant to the sentence, including factors such as remorse) of the case. Such features include: Has the offender pleaded guilty to the crime? Does the offender have prior convictions? What is the age of the offender?
• Aggravating and mitigating factors – In determining the seriousness of a particular crime, the judge will take into account the way that the crime was carried out. Aggravating factors: Age, was gratuitous violence used, was there a breach of trust? Mitigating factors: Contrition or remorse, relative inexperience, being easily lead by another, the effect of alcohol or drugs (in some cases).
• Judicial discretion and limits on discretion – 

• Judicial guidelines – The discretion vested in the judge is not without restriction or limits. There are no legislative guidelines. The various acts merely give maximum sentences for serious cases.
• Mandatory sentencing – Further restriction is placed on the discretion for sentencing. There are some acts that set down a mandatory fixed sentence for an offence.
• Maximum penalties – Legislation will in many instances provide a maximum penalty. Where judges have used their discretion and not used the max. penalty they may have to explain why they did this.

• Penalties

• Types of penalty – fines, bonds (obligations given by a court for the accused to perform some task), probation order (same of bonds but must be supervised), community service order, home detention, periodic detention (generally requires the offender to spend each weekend from 7pm Friday until 4:30pm Sunday in custody at a periodic detention centre) and imprisonment (last resort).
• Penalties no longer available – capital punishment (death), corporal punishment (whipping).
• Penalties that infringe human rights law – cruel and unusual punishment. See page. 141

• Post-sentencing decisions:

The Crimes (Administration of Sentences) Act 1999 (NSW) deals with how offenders are treated, and rules that apply, following the sentencing process.

• Security classification – Inmates are initially divided into: Short-term and long-term inmates. Long-term inmates are then divided again dealing with level of security.
• Protective custody – Inmates who are likely to be discriminated against in a correctional centre can seek protective custody. This may apply to people who are: homosexual, infected with HIV, suffering physical or mental disability or convicted of certain crimes, particularly the sexual assault of children.
• Parole – inmates can leave custody but must agree to certain conditions.

• International crime:

• The International Criminal Court – An international tribunal that has permanent jurisdiction to try crimes that the international community believes are so serious that they threaten world peace and order.
• Sanctions – Penalties include: life imprisonment, imprisonment for a specific number of years, with max and min terms still under consideration or fines. The death penalty is still in question.

• Extradition: the delivery of a person who has allegedly committed crimes by the government of a country where the person has taken refuge, to the government of a country where the crime occurred for trial.

• Assessing the efficiency and effectiveness of a legal measure in achieving justice: Need a current criminal justice issue that I’ve researched.

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Morality, ethics and

Commitment to the law

• The extent to which law reflects moral and ethical standards: There are areas where the law and morality coincide, and it could be said that the law is enforcing moral behaviour, or at least reinforcing the moral standards of society. This is because the law has been influenced by the beliefs and attitudes of those who make and shape the law.

• Commitment to the law – compliance and non-compliance: The positive obligation to obey law is how we go about our normal lives. This is sometimes called habit of obedience (the normal response of reasonable persons to obey the law). When a person may be faced with the need to obey an unjust law, civil disobedience (to disobey a law that is felt to be unjust and to suffer the consequences) precepts may be utilised.

Effectiveness of the Law

• Factors to be considered when evaluating the effectiveness of law in achieving justice:

      -            For individuals –

• Equality – All people are equal before the law and are entitled without any discrimination to the equal protection of the law. This concept is a foundation tenet for our whole legal system and basic human rights.
• Accessibility – A criminal justice system cannot be fair, efficient or effective if all people cannot access services that will allow their defence to be adequately placed before the court.
• Enforceability – A law that creates a crime but which cannot be enforced is considered a ‘bad’ law. Most laws can be enforced by the state acting through the police or by members of government departments. A private citizen can also bring a criminal prosecution (although this is rare).
• Resource efficiency – Criminal law, recognising that people should not benefit from the crimes, has made crime less economically viable. Efforts include: people killing to benefit from a will shall not receive the inheritance, the assets of drug dealers will be confiscated and convicted people will be restricted in selling their stories to the media.
• Protection and recognition of individual rights – The right of a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraint and penalties of the criminal law.

       

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       - For Society – The effectiveness of the criminal legal system in achieving justice can be evaluated by using a different set of criteria:

• Resource efficiency – How effective and efficient is the criminal justice system in terms of the money spent on it? Resource allocation must be split among various parts of the criminal justice system and, consequently, there are various sectors where efficiency can be tested.

• Law as a reflection of community standards and expectations – For a law to be enforceable, it must be generally accepted by society. The law as a reflection or community standards is merely another way of looking at the same issue. The community will only have respect for, and general obedience of, the law when it reflects general community standards.
• Opportunities for enforcement – Since the early 1980’s, there has been calls for the establishment of independent prosecutorial agencies – independent of both the police and the government. It has been of concern that the police prosecutors lack the necessary independence when they are part of, and answerable to the same officers as, the investigating branch of the service.
• Appeals and review – To this end, government recognise that once a decision is made, there ought to be a right of appeal so that any errors can be rectified. But the rights of appeal and review are limited:                  

• The decision to prosecute or not, is not subject to formal review. –
•  Determination of facts by a jury is not usually reviewable by a superior court. The accused can only try to show that the judge misdirected the jury as to law associated with those facts.
• The decision as to the penalty is also reviewable.

• The balance between individual and community rights and values: see page. 167

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Law Reform

• The agencies of reform and the conditions which give rise to the need for reform

• Law reform commissions: When a law is needed of a reform, the federal or state government will identify the problems and contact a law reform agency. Cwlth and NSW governments have created law reform commissions:

• Permanence: both were created by statues and have a permanent research and administrative staff
• Full time: both have a full-time core of commissions who are employed for various periods to advise on law reform. Commissioners with expertise will be brought in to work on particular areas
• Independence: both are independent of the interests and motivations of political parties, the bureaucracy or interest groups
• Authoritative: both have statutes within the legal profession and are highly respected by the government and parliament. This is reinforced by the quality of people appointed to the commissions and the respect given generally to the commissions’ reports and recommendations.

• Parliament: Parliament is also a venue for inquiry into change. Judges will ask parliament to rectify mistakes or injustices. This has meant that law reform generally will now be found in legislation.
• Courts: Law reform by courts is limited as courts are no longer able to create new criminal offences. They still have a role as they are in the best position to note the effect of law on the community.
• Changing social values and composition of society: Society’s perception of crime is that it is increasing…page 174
• New concepts of justice: One particular area of criminal law where there have been attempts to re-evaluate some traditional approaches to the maintenance of law and order is juvenile justice. In NSW, a series of acts was passed that aimed to force parents to be accountable for the actions of their children.
• Failure of existing laws: Law reform will, in many cases, be necessary when it becomes evident that an existing law is either not delivering a just or solution or may even be working against such a solution.
• International law: International law does not directly affect the rights and duties of Australian citizens until it has been either enacted into local domestic law by the parliament, or judges declare the law to be part of domestic law. International law can be consulted to assist the court in determining domestic law.
• New Technology: While it has always been a feature of law reform to keep the legal system in tune with social and technology change, this have become even more important as the pace of change has speeded up. Eg. Illegal interception, electronic vandalism and terrorism, piracy.

Law and Society

Law and Justice

• The essential influences on law:

• The concept of the rule of law: a system in which the administration of justice is open and laws are known and certain; laws will apply equally, prospectively and to all; it implies an independent judiciary and respect for the value and dignity of the individual.
• The social, cultural, moral, political and economic influences: Laws are a reflection of the culture and values of society that it represents. Such pressure can come from: social, cultural, moral, political or economic.

• Nature of Law:

• Development of law as a reflection of past and present society: If we accept the following, there can be little doubt that the law must reflect present society:

• the law is influenced by social and cultural factors
• both public and private morality will be found in the criminal law
• the way the material benefits of economic life are distributed to the various groups in society will reflect the economic and political philosophy of those people who have voted for the government of the day.

But just as important is the fact that the present law cannot b divorced from the development of society. Both the past and present will be evident in the laws and the legal system. A good eg is in the case study: Freedom of contract.

• Customary law, common law and civil law:
• Customary law: those obligatory customs and practices that are sufficiently fixed and applicable over a substantial area as to regulate the activities and behaviour of those people to whom they apply.
• Common law: law developed in the common law courts by the judges. This sets precedents that are authoritative and binding, and must be followed. Although there are more limits to judges that there was in the past.
• Civil law: the body of law based on Roman civil law which went into decline after the fall of Rome, but flourished again in the 11th and 12th centuries in Europe, to be later taken with trade and conquest into Central and South America and Japan. It is academic who have provided commentaries on the law and whose opinion has greater weight.

• Doctrine of natural justice: Natural justice encapsulates the general principles and minimum standards required of people who make decisions that affect other people. Traditionally, natural justice has required two things:

• a person should not be condemned until his or her defence is fairly heard
• the person making the decision should not be biased.

• The purpose of different types of law: domestic and international law; public and private law; civil and criminal; contract law; tort law; property law; Aboriginal and Torres Strait Islander customary law
• If it is accepted that the principle purpose of law is the maintenance if social order, the law can be divided into various streams depending on the type of dispute that is likely to disrupt that order. This allows the law to develop certain rules or procedures that allow different types of disputes to be dealt with differently.

• Nature of Justice

• Concepts of access, equity, fairness, equality and human rights:
• Justice has various attributes and can be reflected in different circumstances to show whether a law is either acceptable or not.
• Access: It has expanded from just the enforcement of private rights, to public rights as well. Such areas standing in the way of access to the legal process and ways of measuring the legal system in terms of fairness, more efficient and more effective for all in the community can include: legal aid, alternative dispute resolution and the ombudsman and consumer complaint scheme. Other areas include: accessible legislation, efficient civil court procedure, court fees, regulation of costs and contingency fees.
• Equity: Equity is a synonym of fairness. In legal circumstances, the term has been given a specific meaning as indicating something that contrasts with the strict rules of law.
• Fairness: Fairness is the quality that underpins justice and equity.
• Equality: Equality is a basic or natural right of all people and consequently is an attribute of justice. In the legal setting, equality before the law means that every person will have the same legal rights unless it can be shown that there is some rational justification for a person not to have the same rights.
• Human Rights: Human rights are also very much centred on humankind. As they are the privileges inherent to all human beings.

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Human Rights

• Rights:
• The nature and development of concepts of human rights:

• State sovereignty: when governments run their own affairs in their own way and are not answerable to any higher authority.
• ‘Natural law’ doctrine: when governments are answerable to a higher authority: originally this was based on the need to follow religious thinking, now it is based on international human rights law.
• Historic constitutional documents: Magna Carta, The English Bill of Rights, The US Bill of Rights, The Four Freedoms speech, The Universal Declaration of Human Rights.
• Abolition of slavery: Article 4 of the Universal Declaration if Human Rights state: ‘No-one shall be held in slavery or servitude; slavery and slave trading shall be prohibited in all their forms.’
• Trade Unions: Article 23(4) of the Universal Declaration if Human Rights state: ‘Everyone has the rights to form and to join trade unions for the protection of his or her rights.’
• Universal Suffrage: Article 21(3) of the Universal Declaration if Human Rights state: ‘’The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’
• Universal education: Article 26(1) of the Universal Declaration if Human Rights state: ‘Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all in the basis of merit.

• Distinguish between moral, customary and legal rights:
• Moral Rights: come from the principles f how a person is to behave as set out in religious beliefs. People who live without any religious beliefs derive their ideas about rights from their own conscience and thinking about how they are to behave in society.
• Customary Rights: refer ti implicit understandings and are based on trust (rather than the formal legal system).
• Legal Rights: are based on a legal system. They have evolved over the centuries as rulers have gradually, and usually grudgingly, agreed to recognise more and more of them.

• Differences between domestic and international rights: The main differences comes (at least in Australia) from the methods of protection rather than the substance of the rights themselves.

• Identifying the types of international rights: 

• Individual human rights: These can be divided into: civil and political rights: economic, social and cultural rights: environmental and peace rights.
• Civil and political rights: The oldest human rights are civil and political ones, such as the right to a fair trial or to take part in politics.
• Economic, social and cultural rights: About a century ago, as European countries started to create welfare states, recognition was given to economic, social and cultural rights such as the right to work and to equal pay for equal work. By contrast, cultural rights represent one of the least developed areas in human rights. (p. 64-65)
• Environmental rights: The most recent rights are the more general ones such as the rights to peace and a healthy environment. These rights require governments to work together to ensure their implementation.

The right to a healthy environment is a good example of the process where there is a gradual recognition of a new human right.

• Peace Rights: The right to peace was set out in a non-binding UN General Assembly resolution on 12th November 1984. It represents the primary condition for the preservation of human civilisation and the survival of humankind.

• Collective right to self-determination: It imposes the idea that all countries have the right to self-determination.

• The recognition of human rights under Australian law: common and statue law, evolving human rights; including the possibility of a Bill of Rights, recognition and enforcement of rights:

• Common law and statute law: The two legal foundations in Australia for the protection of human rights are the common law and statute law. Common law evolved to make up for the gaps in statute law adopted by parliament. Common law has not only protected human rights in Australia, but the protection of human rights has also aided the development of common law.
• An Australian Bill of Rights? The Australian Constitution did not implement a Bill of Rights like the US, as they wanted to guarantee the rights of the states, rather than human rights. A national system of human rights would have also eroded the various pieces of state legislation that discriminated against non-Europeans in the colonies.

Attempts to create an Australia Bill of Rights has been carried out, but all failed.

• Contemporary struggles for human rights, the changing understanding of human rights and the effectiveness of legal measures both domestically and internationally in addressing human rights issues:

- There are many examples of contemporary struggles for human rights. Such issues include: The right to work, Child sex tourism or the Death of Languages.